WIN and Nine back in court over live-streaming with CEO Lancaster likely to be a key witness

Regional broadcaster WIN returns to court today in its legal action against affiliate Nine where it is seeking to stop its live streaming service, 9Now, from being available within its broadcast areas.


Despite losing last month’s interlocutory case the parties will today return to the NSW Supreme Court for what has the potential to be a landmark on the legal definition of broadcasting, where it will be again be heard by Justice David Hammerschlag.

Among the potential witnesses expected to be called in the two-day trial are WIN CEO Andrew Lancaster, who is expected to testify before the court that the launch of live streaming on 9Now has hurt the regional broadcaster’s revenues.

Win nineNine is expected to challenge these arguments by arguing that WIN affiliate deal does not cover live-streaming, arguing that the legal action was only launched after Nine rejected a request for a share of the digital revenues in the most recent round of affiliate negotiations in December 2015. 

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The case comes just days after the impact of live-streaming on the three regional TV networks was placed front and centre of the Senate Committee examining media reform.

The committee heard testimony from all three major regional TV CEOs – Lancaster, Southern Cross Austereo CEO Grant Blackley, and Prime CEO Ian Audsley – that the practice of live-streaming was undermining its businesses.

L:R Regional CEOs: Lancaster, Blackley, Audsley.

(LtoR) Regional CEOs: “Live-streaming is undermining our businesses”

Audsley, in particular, fired up on the practice, telling Senators: “We are now clearly losing money to Seven.”

“We lost it through the tennis – the client and the media buyer told us they were taking the money from us and told us they were putting on Seven’s streaming service.”

SCA’s Blackley and Prime’s Audsley also signalled they were watching the case closely and had not ruled out launching similar court actions.

The case also has the potential to set a landmark court ruling on the definition of what broadcasting is in the digital era.

2002 decision by former Communications minister Richard Alston, ruled that that “streaming is not broadcasting“; however, this legal case has the potential to test that decision.

The Australian Communication and Media Authority’s representative, Jennifer McNeill, last week was questioned on that decision by Nationals’ Senator Bridget McKenzie, who was concerned about the impact of live-streaming on WIN, Prime and SCA.

“The reason for that lies in the a Ministerial determination made some time ago,” said McNeill. “Content delivered over the internet was not a broadcasting service for the purposes of licensing.”

McKenzie also quizzed ACCC chairman Rod Sims over its lack of interest in the case.

Asked if the decision by Seven and Nine to live-stream nationally might be loss-leading and even a form of anti-competitive behaviour, the commissioner of the Australian Competition and Consumer Commission was forced to concede: “I’m usually ready for most questions but hadn’t figured that one.

“The honest answer is we have seen the streaming occurring but that hasn’t been an issue that occurred to us.”

Nic Christensen 


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